McCloskey v. Chemical Corn Exchange Bank

While section 636 of the Civil Practice Act and section 661 of the County Law may have been enacted to prevent abuse and oppression by the sheriff in the execution of process in which he has a personal interest, the language of those sections is in no way qualified or ambiguous. Under section 636 of the Civil Practice Act in any action or special proceeding to which the sheriff is a party the execution must be directed to a coroner or a person designated by the court. There is no dispute that the sheriff was “ a party ” in the action instituted pursuant to section 943 of the Civil Practice Act to collect and receive the attached debts. This court cannot legislate by qualifying the term “ party ” in section 636 of the *282Civil Practice Act to mean a party with a personal interest and to exclude a party that is practically pro forma. Any such distinction must be made by the Legislature. Therefore the issuance of the execution herein to the sheriff was improper and void. Since there was no levy under a valid execution it follows that the sheriff is not entitled to poundage. The motion is denied. Settle order.